Workers Comp Blogwire

In NY Workers Comp – What You Pay for is What You Get

Data, being released and discussed, shows that assessments for operating expenses made by the NY WCB against carriers (and passed on to employers) are five times higher than the national average for all states.

Why?

Well, the number of people employed by the NYWCB is greater (1500+) than the number of people employed by all comp boards east of the Mississippi (if Florida is excluded). By 1990, the NYWCB had 650,000 workers comp hearings per year, a number so large and anomalous that a major comp research institute studying New York twenty years ago at first thought that a zero had been added by mistake. [WCx]

In addition, NY has had for decades far higher assessments for second injury funds. (One eastern state has a second injury fund law that, for several decades, had only a single claim which qualified for reimbursement.)

The reasons for the New York anomaly can be traced back to a highly broad interpretation of a requirement that no claim for workers comp could be closed without affording the parties to a hearing. It did not say that more than one hearing was required, nor did it say that a hearing had to be automatically scheduled if no one requested it.

However. New York gradually drifted into the practice of automatically scheduling at least one hearing on every claim. If any party (claimant, carrier or an attorney) for some reason failed to attend, an adjournment was automatically granted. Lawyers, whose fees were, and are, proportional to the number of hearings, were never heard to complain about such policies.

By the 1980s, some claims were breaking all records for administrative tolerance. In one claim (and probably a lot more) a claimant was granted eleven consecutive “final opportunities for the claimant to appear. In 2009, a case was reported where two law firms, and the Board, required seven years of hearings and two years of court appeals to decide which of two carriers was responsible for a claim. (A board clerk had made a key stroke error which placed the wrong carrier on notice for the first hearing. No one ever thought to contact the Compliance Bureau.)

The message for employers is to avoid thinking that others (carriers and the Board) will be the first to limit unnecessary costs on claims. A principal reason (more likely, an excuse) for hearings is that necessary information is not in the carrier's claim file or the WCB e-file. Yet much of the information (payrolls, lost time information) is obtained from the employer.

An employer can reduce the costs on claims by submitting as much information as possible prior to the first hearing. The itemized payroll for the year prior to the accident, for example. That information will be required on all claims with significant lost time (more than a week) and a substantial percentage of all adjournment is to “obtain a payroll prior”. [WCx]

The above suggestion can reduce hearing costs by 10-20% on a claim. Many other suggestions can do the same, but that should do for a start.

Author: Attorney Theodore Ronca is a practicing lawyer from Aquebogue, NY. He is a frequent writer and speaker, and has represented employers in the areas of workers' compensation, Social Security disability, employee disability plans and subrogation for over 30 years. Attorney Ronca can be reached at 631-722-2100. medsearch7@optonline.net